New Cases Challenge Women’s Exclusion from Combat

This Tuesday, a group of servicewomen and a non-profit organization filed suit in California against the Secretary of the Department of Defense (DoD), challenging the Department’s prohibition against women in direct ground combat as a violation of the federal equal protection clause. The prohibition is also being challenged in a lawsuit in the District of Columbia. The Center believes the ground combat exclusion, which is not legislative, should be revoked, and all military assignment should be opened to women. Today, women de facto perform the same military jobs as men in many instances without comparable training, recognition, and benefits. They deserve better.

In the early 1990s, Congress lifted all statutory bars to women’s service, opening up combat aircraft and combat ships. Although DoD expanded jobs available to women at that time, it continued to ban their assignment to units below the brigade level whose “primary mission” involves direct combat on the ground. Direct combat on the ground is defined as “engaging an enemy on the ground with individual or crew-served weapons, while being exposed to hostile fire” and to “a high probability of direct physical contact with the hostile force’s personnel.” Direct ground combat takes place “well forward on the battlefield while locating and closing with the enemy to defeat them by fire, maneuver, or shock effect.” Yet, as the conflicts in Iraq and Afghanistan both demonstrate, non-linear warfare renders this definition obsolete. Almost all military personnel in combat zones are vulnerable to “hostile fire” and “direct physical contact” with the enemy, including women.

Additionally, as the media have documented, the military is expressly circumventing its own policy. Instead of being “assigned” to ground combat units, women are now “attached,” permitting them to patrol streets with machine guns, serve as shooters on vehicles, dispose of explosives, and drive trucks down bomb-ridden roads. Some women have even conducted raids and engaged the enemy directly. 

Indeed, women have already proven their mettle. In the California case, one of the plaintiffs, Major Mary Jennings Hegar, was deployed twice to Afghanistan. The second time, she piloted an aircraft that was shot down by enemy fire as she and her crew were evacuating wounded soldiers. Major Hegar was injured, but returned fire and successfully completed her mission. She was subsequently awarded the Purple Heart and the Distinguished Flying Cross with a Valor Device, two of the highest decorations for a pilot. Another plaintiff, Staff Sergeant Jennifer Hunt, accompanied male combat arms soldiers in Afghanistan on “door kicking” missions, was dropped off in the same location, wore the same body armor, and carried the same weapons as men. She was later injured in Iraq and received the Purple Heart.

The fact that women are officially excluded from ground combat has deleterious consequences. The exclusion bars women from more than 238,000 jobs, including all infantry and armor positions, and from certain occupational fields and training schools. Accordingly, women are disadvantaged in their career advancement. For example, 80% of general officers in the Army above the O-7 level have backgrounds in combat arms positions—those in which women cannot serve. The ban also risks lives because women who are “attached,” rather than “assigned,” to ground combat are often not provided the same training as men, and because, to satisfy their “attached” status, women are sometimes required to return to base after certain intervals, forcing them to travel over dangerous terrain unnecessarily. Finally, the policy makes it harder for women to receive recognition and benefits such as counseling for combat-related trauma like PTSD.

These court challenges present the first-ever constitutional test of the combat exclusion. This is history in the making and we will be closely monitoring the situation. Stay tuned!